Prisoners: Parental Rights

Tonia Antoniazzi Excerpts

Wednesday 13th December 2017 Westminster Hall

[The Parliamentary Under-Secretary of State for Justice (Dr Phillip Lee)]

It is a pleasure to serve under your chairmanship, Mr Hosie. I congratulate the hon. Member for Swansea East (Carolyn Harris) on securing this important debate, which addresses an area of concern in relation to the parental rights of prisoners.

[Tonia Antoniazzi (Gower) (Lab)]

Unfortunately, through a breakdown in communications, I have not been called to speak this morning. However, I support my hon. Friend the Member for Swansea East (Carolyn Harris). The case she discussed is my constituent’s, who I am here to support. Since first meeting my constituent and hearing her story of herself and her two children, I have wanted to ask how the law can allow the father of her children to continue to exert control over their lives from behind bars, when his offence was of a sexual nature.

[Dr Lee]

If the hon. Lady will allow me, I will develop my argument with regards to the current powers of courts in such cases. As I was saying, the hon. Member for Swansea East is fast developing a strong reputation for campaigning on sensitive, difficult and often family-related issues. I commend her for her work in lots of different areas.

I am here on behalf of the Minister of State for Justice, who is detained on legislative business. While policy responsibility for family law sits with him, I have listened carefully to the points that have been made and will ensure that they are relayed to him in full. It is clear that significant distress and emotional harm can result when a parent in prison exercises their parental responsibility with the clear intention of frustrating day-to-day care decisions made by the other parent or to inflict further harm. Such behaviour is unacceptable.

While the maintenance of family ties forms a key foundation stone to support an offender’s rehabilitation, it is clear that not all children can or should maintain contact with a parent who is in prison. Maintaining family ties must always be balanced against the risk of harm posed to the child or the parent with care. While a number of protections are in place under the current law, particular issues arise in cases where children are the victims of an offence by the convicted parent. I have listened closely to the points that have been made about the practical impacts of parental responsibility being exercised in that way and to the arguments for changing the law so that a parent prisoner convicted of a sexual or violent offence loses their parental responsibility on conviction.

In considering the arguments for change, I will set out the current law. There are various aspects to the law on parental responsibility: how parental responsibility is acquired by a parent; whether and how parental responsibility can be removed from a parent in appropriate cases to protect a child or the other parent from the risk of further abuse or harm; and the exercise of parental responsibility by a parent and the means by which a court may restrict the exercise of parental responsibility in specific ways.

Mothers automatically acquire parental responsibility. A father who is married to the mother at the time of the child’s birth also acquires that responsibility. There are no provisions in law by which parental responsibility may be removed from a mother or married father, except through adoption of the child. Unmarried fathers may acquire parental responsibility through various means: birth registration, an agreement with the mother that is registered with the court or by court order. A court may remove parental responsibility from an unmarried father if the child’s welfare so requires.

Where a parent seeks to abuse their parental responsibility, their actions may be overridden by the family court. That power applies regardless of how the parent acquired parental responsibility. The child’s welfare is always the paramount consideration, and there is no absolute right for a parent or any other person to exercise parental responsibility in a way that is detrimental to the child’s best interests. That is clearly the right position in principle.

The ability of a parent prisoner to exercise parental responsibility in many aspects of a child’s day-to-day life is limited by having no direct contact with the child or the parent with care, and powers are available to the family court to restrict the exercise of parental responsibility, which I will talk about in a moment. However, where those protections have not been sought or have not worked for whatever reason, a parent who is determined to abuse their parental responsibility may still be able to do so.

Where there is disagreement between parents who both have parental responsibility, either of them may make an application to the family court for a prohibited steps or specific issue order. A prohibited steps order has the effect of preventing a parent from exercising his or her parental responsibility for their child in a specified way without first obtaining the consent of the court—for example, changing a child’s surname or causing a child to be known by a different surname. A specific issue order allows the court to determine how a specific aspect of parental responsibility for a child should be decided—for example, whether a child should change school.

In addition, where the court is making any order and the person who has applied for it has made multiple previous applications in relation to the child that the court considers to be vexatious, it may make an order restricting that person’s ability to make any further applications of a specified kind in respect of that child without the permission of the court.

I recognise that the current protections place the onus on the parent with care to apply to the family court to restrict the other parent’s exercise of parental responsibility, which is why there are calls to legislate for an automatic removal of parental responsibility in certain circumstances. Questions have been raised about the effectiveness of the orders and how they can best be used to protect a child or parent with care from the abusive exercise of parental responsibility by a parent in prison.

Any change to remove parental responsibility automatically on conviction of certain criminal offences would involve some important considerations for my Department. We would need to be clear that such a change in the law would be in the best interests of all children, for whom the current law provides maximum flexibility. The family court currently balances the legal rights, responsibilities and duties of each parent with the paramount need to further the welfare of the child and to safeguard them from risk of harm or further harm.